Defense Depot Memphis and AFGE Local 2501 (Authority decision, April 22, 1991)

FLRA remand decision. The Authority returns the matter for further proceedings. The underlying dispute remains unresolved. This decision does not present a final judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

The union grieved restrictions on employees visiting its office after filing an unfair labor practice charge. An arbitrator found the grievance barred because the charge raised the same issue. The Authority found the record inadequate to decide whether the two proceedings actually arose from the same factual circumstances. It set aside the award and remanded for further findings; a member dissented.

Decision snapshot

• Authority: 5 U.S.C. § 7116(d).
• Outcome: Arbitration award set aside; grievance remanded for findings on statutory bar.
• Key point: The earlier charge bars the grievance only if the required factual overlap is established.

Full text (FLRA public release)

[ v40 p334 ]

40:0334(32)AR

The decision of the Authority follows:

40 FLRA No. 32

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE DEPOT MEMPHIS

MEMPHIS, TENNESSEE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2501

(Union)

0-AR-2027

DECISION

April 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This matter is before the Authority on an exception to the
award of Arbitrator D. L. Howell filed by the Union under
section 7122(a) of the Federal Service Labor-Management
Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The Agency did not file an
opposition to the Union's exception.

The Union filed a grievance alleging that the Agency
violated the parties' collective bargaining agreement by
failing to allow bargaining unit employees to go to the Union's
office for representational purposes. The Arbitrator
determined that section 7116(d) of the Statute barred him from
hearing the grievance because the issue raised in the grievance
was the same as the issue raised in an earlier-filed unfair labor practice (ULP) charge.(2) The
Union contends that the grievance and the ULP charge involve
different issues.

For the following reasons, we find that we are unable to
determine from the record whether section 7116(d) bars the
grievance in this case. Accordingly, we will set aside the
award and remand the case to the parties to request that an
arbitrator mutually agreed to by the parties make findings
consistent with our decision.

II. Background and Arbitrator's Award

On December 12, 1989, the Union filed a ULP charge
stating, in part, that

on/or about the 6 November 1989, and continu[ing]
thereafter [the Agency] violated the Union's
Contract Agreement, by . . . . refus[ing] to release
employees and give them the opportunity to come to
the Union Office, when there [are] matters that need
the attention of the president of the Local[.]

Arbitrator's Award at 4. By letter to the Union's
President dated February 27, 1990, the Regional
Director of the Authority's Atlanta Region stated
that pursuant to a telephone conversation with the
Union's agent on February 22, 1990, the ULP charge
was being withdrawn. The Union states that the
parties reached a settlement agreement and that, in
a letter dated April 26, 1990, the Union was
informed by the Agency that its "managers and
supervisors will continue to recognize" the Union's
designated representatives. Exceptions, Enclosure
IV. According to the Union, it "had no problems"
relating to this matter for approximately 2 months.
Exceptions at 1.

On June 22, 1990, the Union filed a grievance
stating, in part, that the Agency violated the
parties' agreement by "disallow[ing] employees
covered by the bargaining unit, to come to the Union
office for representational purposes." Id. at 5. The Agency stated that the grievance was
barred by section 7116(d) of the Statute because a
ULP charge had previously been filed on the same
issue. Accordingly, the Agency denied the
grievance. The grievance was subsequently submitted
to arbitration.

The parties agreed at the arbitration hearing
that before ruling on the merits of the case, the
Arbitrator was to determine the following issue:
"Is the subject grievance dated 22 June 1990
arbitrable?" Id. at 1.

The Agency argued before the Arbitrator that the
Union raised the same issue in its ULP charge and
that, under section 7116(d), "raising the subject
issue as an unfair labor practice with the FLRA
negates the filing of a grievance on that same
issue." Id. at 5. The Agency further argued that
section 7116(d) uses the word "raised," not
"adjudicated," and that, "therefore, the withdrawal
by the Union of the unfair labor practice charge
with the FLRA does not change the fact that the
Union selected that option, not the grievance
procedure[,] in processing the issue." Id.

The Union argued before the Arbitrator that "the
unfair labor practice charge was not adjudicated by
the FLRA" and that "the FLRA agent stated that a
withdrawal of the charge by the Union 'would not
keep the Union from filing a grievance later on.'"
Id. at 6. The Union also argued that "the subject
grievance was filed later in the year[.]" Id.

At the arbitration hearing, the parties agreed
that the Arbitrator should contact the Regional
Director of the Authority's Atlanta Region to
determine whether "a grievance could be filed on the
same issue if an unfair labor practice charge were
withdrawn." Id. The Arbitrator was told by the
Regional Director that "it was not the policy of the
FLRA to state that 'a grievance could be filed on
the same issue if an unfair labor practice charge
was withdrawn before adjudication.'" Id.

The Arbitrator found that the "present grievance
appears plainly to be an attempt to reinstate the
former issue in the unfair labor practice charge
which had already been withdrawn from the FLRA by
the Union." Id. at 8. The Arbitrator noted that
filing a ULP charge "does not bar the Union from
filing a grievance at some future date if it is felt
that a provision of the contract has been
subsequently violated by the Agency." Id. at 7-8.
However, the Arbitrator noted that "any future
grievance claiming a contract violation would have to be so specifically
stated to distinguish it from the withdrawn unfair
labor practice charge" and that in "the subject 22
June 1990 grievance this was not done." Id. at 8.
As he found that the "record does not support any
distinction between the issues on the subject
grievance and the previous unfair labor practice
charge[,]" the Arbitrator concluded that the
grievance was not arbitrable. Id.

III. Union's Exception

The Union disputes the Arbitrator's finding that
the grievance and the ULP charge present the same
issue within the meaning of section 7116(d) of the
Statute. The Union notes that the problems cited in
the ULP charge and the grievance are "similar in
nature," but contends that "the events are covered
under two different time span[s]." Exception at 2.
Specifically, the Union notes that the ULP charge
was filed in December, 1989 and withdrawn on
February 22, 1990, while "in June of 1990,"
employees and representatives were told by
management officials that they "would not be
released from duties for [the] purpose of coming to
the Union Office to deal with representational
functions[.]" Id. at 1. Because the "set of
situations" from which the grievance arises "began
some two (2) months after the settlement arising
from the ULP," the Union argues that "these now were
a new set of violations, and that the Union should
have the right and the option to make another
filing[.]" Id. at 2.

The Union further argues that upholding the
Arbitrator's finding as to section 7116(d) of the
Statute would mean that "neither party at anytime in
the future would have the right to file any charge,
based on the fact that sometime in the past a
ruling, withdrawal, or settlement was rendered for a
particular situation." Id.

IV. Analysis and Conclusions

For the following reasons, we find that we are
unable to determine from the record whether section
7116(d) of the Statute bars the grievance in this
case.

Section 7116(d) of the Statute provides that
issues which may be raised under a negotiated
grievance procedure may, in the discretion of the
aggrieved party, be raised under that procedure or
as an unfair labor practice, but not under both
procedures. For a grievance to be precluded under
section 7116(d) by an earlier-filed unfair labor
practice charge, all of the following conditions
must be met: (1) the issue which is the subject matter of
the grievance must be the same as the issue which is
the subject matter of the unfair labor practice; (2)
such issue must have been earlier raised under the
unfair labor practice procedures; and (3) the
selection of the unfair labor practice procedures
must have been in the discretion of the aggrieved
party. See, for example, U.S. Department of
Defense, Marine Corps Logistics Base, Albany,
Georgia and American Federation of Government
Employees, Local 2317, 37 FLRA 1268, 1272 (1990)
(Marine Corps Logistics Base); and U.S. Department
of Health and Human Services, Social Security
Administration, Office of Hearings and Appeals,
Region II and American Federation of Government
Employees, Local 1760, 36 FLRA 448, 451 (1990).

The Arbitrator found that the "record does not
support any distinction between the issues on the
subject grievance and the previous unfair labor
practice charge; therefore, the 22 June 1990
grievance is not arbitrable." Arbitrator's Award at
8.

In determining whether the grievance and the ULP
charge involve the same issue, the Authority will
look at "whether the ULP charge and the grievance
arose from the same set of factual circumstances and
whether the theories advanced in support of the ULP
charge and the grievance are substantially similar."
Marine Corps Logistics Base, 37 FLRA at 1272. See
U.S. Department of Veterans Affairs; and Overseas
Education Association v. FLRA, 824 F.2d 61, 72
(D.C. Cir. 1987) (OEA), reversing and remanding sub
nom. Department of Defense Dependents Schools,
Pacific Region and Overseas Education Association,
17 FLRA 1001 (1985), decision on remand, 29 FLRA
1225 (1987).

By stating that "any future grievance claiming a
contract violation would have to be so specifically
stated to distinguish it from the withdrawn unfair
labor practice charge" and that the "record does not
support any distinction between the issues on the
subject grievance and the previous unfair labor
practice charge[,]" the Arbitrator appears to be
finding that the theories advanced in both the ULP
charge and the grievance were the same.
Arbitrator's Award at 8. However, in our view, the
Arbitrator made no specific findings as to the
factual circumstances surrounding the grievance and
the ULP charge. That is, the record does not show
whether the grievance and the ULP charge arose from
the same occurrence or set of facts. See Marine
Corps Logistics Base and OEA. In this regard, we
note that the Union claims that the facts leading to
the grievance arose in June 1990, whereas the facts
leading to the ULP charge arose before December 1989. The
Agency disputed those claims before the Arbitrator.

We cannot determine from the record before us the
factual circumstances surrounding the grievance or
the ULP charge. Specifically, there has been no
finding made with regard to the Union's claim that
the facts leading to the grievance arose in June
1990, 2 months after the settlement arising from the
ULP charge and well after the events leading to the
ULP charge of December 1989. Therefore, we are
unable to determine whether the same issue was
presented in both proceedings within the meaning of
section 7116(d). Because the Arbitrator did not
make the necessary factual findings and the record
does not provide the factual information necessary
for the Authority to determine whether the same
issue was presented in both proceedings within the
meaning of section 7116(d) of the Statute, we will
remand the case to the parties to request that an
arbitrator mutually agreed to by the parties make
findings consistent with this decision.

Accordingly, to find that the ULP charge and the
grievance present the same issue within the meaning
of section 7116(d), the arbitrator must determine
that the ULP charge and the grievance arose from the
same set of factual circumstances and that the
theories advanced in support of the ULP charge and
the grievance are substantially similar. Should the
arbitrator find that the ULP charge and the
grievance present the same issue, the arbitrator
must then consider the remaining factors set forth
previously before finding that section 7116(d) bars
the grievance in this case. Specifically, the
arbitrator would have to consider: (1) whether the
issue in the grievance had been earlier raised under
the ULP procedures; and (2) whether the aggrieved
party in the grievance and the ULP proceedings was
the same and, if so, whether the selection of the
unfair labor practice procedures was in the
discretion of that party. See, for example, Marine
Corps Logistics Base, 37 FLRA at 1273-74; U.S.
Department of Veterans Affairs, Veterans
Administration Medical Center, Newington,
Connecticut and National Association of Government
Employees, Local R1-109, 36 FLRA 441, 446-47 (1990);
and U.S. Department of Justice, Immigration and
Naturalization Service and American Federation of
Government Employees, Local 2724, 20 FLRA 743, 745
(1985).

V. Decision

The award is set aside and the case is remanded
to the parties to request that an arbitrator
mutually agreed to by the parties make findings
consistent with this decision.

Opinion of Chairman McKee, dissenting

I dissent in this case because, in my view, the
Arbitrator's award is sufficient for the Authority
to determine whether the grievance is barred by
section 7116(d) of the Statute.

At the outset, I agree with my colleagues that,
as relevant here, the grievance is barred if it
arose from the same set of factual circumstances as
the unfair labor practice charge. That is, whether
the general "issue" involved in the unfair labor
practice charge and the grievance is the same is not
determinative if, in fact, the factual circumstances
giving rise to the two proceedings are different.

In my view, however, the Arbitrator recognized
and resolved this matter. With regard to the
Arbitrator's recognition of the issue, the
Arbitrator expressly acknowledged that the
earlier-filed ULP charge "does not bar the Union
from filing a grievance at some future date if it is
felt that a provision of the contract has been
subsequently violated by the Agency." Award at 7-8
(emphasis added). Indeed, the Arbitrator stated
that an interpretation of section 7116(d) which
would hold that a previous ULP would bar "forever
any future grievance" would be "grossly unfair" and
inconsistent with section 7116(d). Id. at 7
(emphasis in original).

I find it clear, from these statements, that the
Arbitrator was well aware that the grievance would
not be barred by section 7116(d) if it was based on
Agency actions other than those complained of in the
ULP charge.

With regard to the Arbitrator's resolution of the
issue, the Arbitrator stated that "any future
grievance claiming a contract violation would have
to be so specifically stated to distinguish it from
the . . . unfair labor practice charge." Id. at 8.
The Arbitrator then stated that, in the Union's
written grievance, "this was not done." Id. An
examination of the grievance supports the
Arbitrator's statement. Attachment to Exceptions.
The Arbitrator concluded, in this regard, that as
the "record does not support any distinction between
the issues on [sic] the subject grievance and the
previous unfair labor practice charge[,]" the
grievance was barred. Id.

As I find it plain that the Arbitrator recognized
and understood the framework for resolving the
Agency's allegation that the grievance was barred by section
7116(d), I find it equally plain that the
Arbitrator's award constitutes his determination
that the Union failed to demonstrate that the
grievance arose from a set of circumstances
different from those giving rise to the ULP charge.
That is, in my view, the Arbitrator determined that
the Union failed to create a record on which to
conclude that the grievance was not barred.

The Union does not now allege that it was
prevented from entering evidence, or making
arguments, that the factual circumstances from which
the grievance arose differed from those giving rise
to the ULP charge. Further, the Union does not
allege that the Arbitrator failed to consider any
evidence it offered on this matter. Accordingly, I
find no basis on which to conclude that the
Arbitrator's award is deficient. Likewise, the
record, in my view, is sufficient to resolve the
Union's exception. I would, therefore, find that
the Union's exception constitutes mere disagreement
with the Arbitrator's evaluation of the evidence
before him and his conclusions based thereon and,
consistent with long-standing Authority precedent,
deny the exception.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. Chairman McKee's dissenting opinion is set forth after the
   majority opinion.

2. Section 7116(d) of the Statute provides in
   relevant part:

[I]ssues which can be raised under a grievance
procedure may, in the discretion of the aggrieved
party, be raised under the grievance procedure or as
an unfair labor practice under this section, but not
under both procedures.